Incorrect registration of batteries can be warned

Of course, products containing batteries are also sold via online shops. These products must be reported to the Joint Take-Back Scheme. In addition, great care must be taken, because if you register the wrong type of batteries, this circumstance can also be warned, despite the actual registration. This has now been decided by the Higher Regional Court of Frankfurt.

Pursuant to Paragraph 3 III of the BattG, manufacturers may only place batteries on the market if they have previously indicated this in accordance with The First sentence of Section 4 (1) of the BattG. Pursuant to Section 4 I BattG, each manufacturer is obliged to notify the Federal Environment Agency before placing batteries on the market. According to Section 2 No. 15 BattG, “manufacturer” is the first to place commercial batteries on the market. The type of battery must be indicated during registration. This classification has consequences for the withdrawal of batteries regulated by the BattG. For portable batteries on the one hand and industrial and vehicle batteries on the other, the BattG provides for various return systems.

Above all, it is necessary to distinguish what kind of batteries are involved. Industrial batteries and accumulators include only batteries and accumulators for emergency or backup power in hospitals, airports or offices, batteries and accumulators for use in trains or aircraft and batteries and accumulators for offshore drilling rigs or lighthouses as well as numerous similar applications. By device batteries, on the other hand, the law means all encapsulated batteries that can be easily held in the hand of the average person and which are neither vehicle batteries nor industrial batteries. These are typically monocell batteries such as AA or AAA, mobile phone batteries and the like. However, the classification can be tricky and it may have to be determined on the basis of the legal justification. A few hints can be found in the reasons for the judgment.

What is particularly problematic is that the OLG did not want to allege that the defendant had sought to classify the battery with the competent authority!

The defendant cannot successfully rely on an administrative decision to classify it as a ‘device battery’. An infringement of competition law is ruled out if the competent administrative authority has issued an effective administrative act that expressly permits the objectionable market behavior (BGH GRUR 2018, 1166 [BGH 13.09.2018 – I ZR 26/17] Rn. 27 – Process financier). The written opinion of the Federal Environment Agency, according to which batteries in a mobile toy car are portable batteries, does not make any binding regulation in this sense (Annex B7). The letter is not an administrative act with an effect on the facts. The same applies to the letter of the Federal Environment Agency dated 24.1.2019 (Annex BK5), which is described as a “technical opinion”. An administrative act is any injunction, decision or other public authority measure taken by an authority to regulate an individual case in the field of public law and which is directed to direct legal effect to the outside world (Section 35 sentence 1 vwVfG). The question whether the expression of an authority constitutes an administrative act must be determined in accordance with Paragraphs 133, 157 of the German Civil Code (BGB). According to that provision, the interpretation of an administrative act is based on the declared will of the issuing authority, as the recipient could understand it in an objective assessment (BGH, Urt. v. 14.6.2007 – I ZR 125/04, paragraph 16 – juris). By letter dated 25.12.2018, the defendant had requested a declaration of assessment. However, the letter of reply from the Federal Environment Agency does not concern one. The Office has expressly issued only a “technical opinion”. In it, it merely states its legal view that, in our view, the battery to be evaluated ‘should not be classified as a vehicle or industrial battery, but as a battery of equipment’. A binding regulatory content, according to which the registration of the batteries at issue is correct, cannot be inthesisive from the letter.

A very debatable legal opinion, I think!